Her Majesty the Queen v. MacKinnon
[Indexed as: R. v. MacKinnon]
Ontario Reports
Ontario Superior Court of Justice
Copeland J.
April 19, 2021
155 O.R. (3d) 81 | 2021 ONSC 2749
Case Summary
Courts — Trial judges' discretion — Conduct of trial — Accused's trial for second-degree murder and attempted murder occurring during COVID-19 pandemic — Some witnesses (primarily police officers and experts) appearing by videoconference, and civilian witnesses in person — Accused asking that central witnesses, whose credibility is relevant, should be ordered to testify unmasked — Issue for discretion of trial judges, guided by directions from Chief Justices — Trial judge ruling that witnesses appearing in person would have to remain masked while testifying — Requiring masking did not create serious risk to trial fairness as demeanour was not determinative in assessing credibility — Requiring removal of mask would interfere with important public health interest of limiting virus transmission.
Criminal law — Trial — Witnesses — Credibility — Accused's trial for second-degree murder and attempted murder occurring during COVID-19 pandemic — Some witnesses (primarily police officers and experts) appearing by videoconference, and civilian witnesses in person — Accused asking that central witnesses, whose credibility is relevant, should be ordered to testify unmasked — Issue for discretion of trial judges, guided by directions from Chief Justices — Trial judge ruling that witnesses appearing in person would have to remain masked while testifying — Requiring masking did not create serious risk to trial fairness as demeanour was not determinative in assessing credibility — Requiring removal of mask would interfere with important public health interest of limiting virus transmission.
The accused's trial for second-degree murder and attempted murder occurred during the third wave of the COVID-19 pandemic. The provincial government had ordered a province-wide "emergency brake" shutdown in response to an "alarming surge" in COVID-19 case numbers and hospitalizations. That was followed by a declaration of a state of emergency involving a stay-at-home order. The Chief Justice had issued directions that jury trials were suspended and that in-person matters would not be held with the exception of only the most serious child protection matters, urgent family matters and criminal matters, where other options were absolutely unavailable. The court was to continue to hear as many matters as possible virtually. All three Chief Justices issued a memo strongly recommending that the judiciary, judicial officers, counsel, self-represented parties and witnesses wear a mask to cover the nose and mouth while in a courtroom, even if speaking behind a plexiglass barrier. Some witnesses in the accused's trial were being heard by videoconference by agreement of the parties, while other witnesses were being heard in person. In light of the worsening state of the pandemic and the direction of Chief Justice, the trial judge was asked for a ruling on whether witnesses testifying in person would have to remain masked during their testimony. The accused took the position that those testifying in person should not be masked, particularly in relation to witnesses whose credibility was likely to be challenged. [page82]
Held, witnesses testifying in person were directed to remain masked during testimony.
Requiring witnesses to remain masked did not create a serious risk to trial fairness, while requiring removal would interfere with the important public health interest of limiting transmission of the COVID-19 virus in the courtroom. A trial judge had the discretion to direct a witness to testify with or without a mask and was not bound by either the directions of the Chief Justice or of the actions of the provincial government, although the evidence underlying those directions and actions had to be considered. The Supreme Court of Canada had established a framework for balancing competing rights with respect to a witness wearing a face covering in the form of a niqab. Although it was not clear whether that case was binding given the different interests at stake, the framework it established was considered to be the best to apply. The first branch of the framework considered whether requiring a witness to remove a mask would interfere with public health measures. In the present state of scientific knowledge and the present state of the pandemic, it was clear that masking was an important measure to limit transmission of the virus when people were indoors together. The second branch considered whether requiring a witness to wear a mask would create a serious risk to a fair trial. For some of the civilian witnesses, credibility was very much in issue. However, it was important not to overstate the importance of seeing a witness's face to assess credibility and reliability. The substance of the witness's evidence and its relationship to other evidence were better guides to such an assessment than demeanour. In any event, public health masks did not cover the full face and voice and hesitation, if any, would still be audible. The rulings on the first two branches were sufficient to dispose of the matter, but even if an important public interest and trial fairness were engaged on the facts, there was a way to accommodate both and avoid the conflict between them by means of hearing testimony by videoconference. There had been no submissions and there was no ruling on the issue of whether the accused would be required to remain masked if he chose to testify.
R. v. S. (N.) (2012), 119 O.R. (3d) 78, [2012] 3 S.C.R. 726, [2012] S.C.J. No. 72, 2012 SCC 72, 353 D.L.R. (4th) 577, 437 N.R. 344, J.E. 2013-8, 297 O.A.C. 200, 290 C.C.C. (3d) 404, 98C.R. (6th) 1, 104 W.C.B. (2d) 824, EYB 2012-215586, 2012 DFQ para. 10,597, 2012 CCAN para. 10,074, 2013EXP-15, apld
Other cases referred to
Children's Aid Society of Algoma v. P. (T.), [2021] O.J. No. 1259, 2021 ONCJ 150; Dagenais v. Canadian Broadcasting Corp. (1994), 20 O.R. (3d) 816, [1994] 3 S.C.R. 835, [1994] S.C.J. No. 104, 120 D.L.R. (4th) 12, 175 N.R. 1, J.E. 95-30, 76 O.A.C. 81, 94 C.C.C. (3d) 289, 34 C.R. (4th) 269, 25 C.R.R. (2d) 1, 1994 CanLII 39, 51 A.C.W.S. (3d) 1045, 25 W.C.B. (2d) 304, EYB 1994-67668, 1994 CCAN para. 10,052; R. v. Al-Enzi, [2017] O.J. No. 141, 2017 ONSC 304 (S.C.J.); R. v. Bdeir, [2021] O.J. No. 466, 2021 ONCJ 54; R. v. Belem, [2017] O.J. No. 1882, 2017 ONSC 2213 (S.C.J.); R. v. Francis, 2020 ONSC 477 (S.C.J.); R. v. Levogiannis (1993), 16 O.R. (3d) 384, [1993] 4 S.C.R. 475, [1993] S.C.J. No. 70, 160 N.R. 371, 67 O.A.C. 321, 85 C.C.C. (3d) 327, 25 C.R. (4th) 325, 18 C.R.R. (2d) 242, 1993 CanLII 47, 21 W.C.B. (2d) 379, 1993 CCAN para. 10,057; R. v. Mentuck, [2001] 3 S.C.R. 442, [2001] S.C.J. No. 73, 2001 SCC 76, 205 D.L.R. (4th) 512, 277 N.R. 160, [2002] 2 W.W.R. 409, J.E. 2001-2142, 163 Man. R. (2d) 1, 158 C.C.C. (3d) 449, 47 C.R. (5th) 63, 51 W.C.B. (2d) 349, JCPQ 2002-40; R. v. P. (D.), [2017] O.J. No. 1593, 2017 ONCA 263; R. v. Rhayel, [2015] O.J. No. 2675, 2015 ONCA 377, 123 W.C.B. (2d) 255, 324 C.C.C. (3d) 362, 22 C.R. (7th) 78, 334 O.A.C. 181; R. v. Schertzer, [2010] O.J. No. 6281, 2010 ONSC 6686 (S.C.J.); R. v. Zaganjori, [2019] O.J. No. 2144, 2019 ONSC 2518 (S.C.J.); Reference re Motor Vehicle Act (British Columbia) S 94(2), [page83] [1985] 2 S.C.R. 486, [1985] S.C.J. No. 73, 1985 CanLII 81, 24 D.L.R. (4th) 536, 63 N.R. 266, [1986] 1 W.W.R. 481, J.E. 86-99, 69 B.C.L.R. 145, 23 C.C.C. (3d) 289, 48 C.R. (3d) 289, 18 C.R.R. 30, 36 M.V.R. 240, 15 W.C.B. 343, 1985 CCAN para. 10,028; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, [2002] S.C.J. No. 3, 2002 SCC 1, 208 D.L.R. (4th) 1, 281 N.R. 1, J.E. 2002-161, 37 Admin. L.R. (3d) 159, 90 C.R.R. (2d) 1, 18 Imm. L.R. (3d) 1, 110 A.C.W.S. (3d) 1104; Toronto International Celebration Church v. Ontario (Attorney General) (2020), 154 O.R. (3d) 122, [2020] O.J. No. 5733, 2020 ONSC 8027 (S.C.J.); Woods (Re), [2021] O.J. No. 1631, 2021 ONCA 190
Statutes referred to
Canadian Charter of Rights and Freedoms, ss. 1, 7
Criminal Code, R.S.C. 1985, c. C-46, ss. 486.2 [as am.], 714.1 [as am.], 714.2 [as am.]
RULING to determine whether witnesses in a criminal trial were required to wear masks in the courtroom while testifying.
Jonathan Smith and Levi Vandersteen, for the Crown.
Dirk Derstine and Colin Sheppard, for defendant.
[1] COPELAND J.: — At the outset of this trial, prior to arraignment, I briefly addressed COVID-19 safety protocols. This included that all persons in the courtroom during the trial be masked, limiting numbers of persons in the courtroom (below the COVID maximum permitted for this courtroom), and inviting counsel at any time to make submissions to the court on safety protocols if they felt there were ways the court could do things better or more safely.
[2] We then addressed a number of housekeeping items, such as timing of argument for various applications. During that discussion, counsel for Mr. MacKinnon indicated that he may have submissions on the issue of witnesses being masked, but that he wanted to consider his position and check for case law. It was not necessary to decide the issue immediately at that point, as this trial is proceeding as a hybrid of remote and in-person proceedings, and the first several witnesses were being heard by videoconference. I indicated that I would hear submissions on the issue. Ultimately, those submissions were made on April 1, and 9, 2021.
[3] These are my reasons for directing that all witnesses who testify in person will remain masked during their testimony.
Positions of the Parties
[4] The defence submits that the court should apply the balancing test developed by the Supreme Court in R. v. S. (N.) (2012), 119 O.R. (3d) 78, [2012] 3 S.C.R. 726, [2012] S.C.J. No. 72, 2012 SCC 72, to decide if specific witnesses should testify without a mask. In particular, the defence submits that an assessment must be made balancing the public health risk posed by a witness [page84] being unmasked against the fair trial right of the defendant as it relates to the particular witnesses -- including the centrality of the witness to the case, and the extent to which the particular witness' credibility is in issue. The defence seeks to have all civilian witnesses testify without a mask.[^1] However, the defence also acknowledges that the civilian witnesses lie along a spectrum, and submits that the claim for unmasking is stronger for witnesses who are more central to the issues in the trial, and whose credibility is likely to be more in issue. In particular, the defence submits this includes Mr. Deliva (the victim on the attempted murder count), Mr. Forgues (who was with the deceased, Mr. Spilchen and Mr. Deliva all evening, and immediately present just before and during the stabbing), and Mr. Dimitruk (who was with the defendant for most of the evening, and immediately present just before and during the stabbing).
[5] The defence accepts the seriousness of the pandemic, and the risks it poses to public health. The defence also accepts the increased risk to the public at present caused by the third wave of the pandemic, in particular due to increased case numbers; the prevalence of variants of concern; the increased transmissibility of variants of concern; and the increased risk of death and hospitalization from variants of concern. The defence accepts that the courts are concerned about managing risk caused by the pandemic in the context of the administration of justice, and that all reasonable people in the administration of justice want to do their best to make courtrooms safe for anyone attending in them. At base, the defence position is that there is some marginal, and difficult to quantify, increased risk to people in the courtroom if a witness is required to unmask when they testify, but is behind plexiglass and with limited numbers of people in the courtroom. The defence submits that when balanced against the defence interest in seeing the witness' full face as an aspect of the right to a fair trial, the marginal increased risk does not justify having witnesses masked who are central to the issues at trial, and whose credibility is significantly in issue. The defence does not contest the court's jurisdiction to direct that witnesses wear a mask while testifying as part of the COVID-19 safety precautions.
[6] The prosecution submits that in light of the current state of the pandemic in the City of Toronto, there is an important public [page85] health interest in requiring that all persons in the courtroom remain masked, including witnesses during testimony. The prosecution submits that requiring witnesses to remain masked when they testify does not pose a serious risk to Mr. MacKinnon's right to a fair trial. The prosecution further submits that testimony by videoconference is a reasonable alternative, if the court finds that fair trial rights would be put at risk by witnesses wearing masks if they testify in person. The prosecution commends the approach in the recent decision of R. v. Bdeir, [2012] O.J. No. 466, 2021 ONCJ 54.
Context -- The Current State of the Pandemic in Ontario and in the City of Toronto and the Impact on the Courts
[7] Although the defence does not contest the current risks to public health posed by the pandemic, I will expand briefly on two issues of context related to the pandemic. This context is important, given the fact-specific balancing approach of the framework in S. (N.), and given the emphasis that the Supreme Court has repeatedly placed on the importance of contextual analysis in assessing Canadian Charter of Rights and Freedoms claims.
(i) The current state of the pandemic in Ontario and in the City of Toronto
[8] The first piece of context which I must take into account in deciding the issue of witness masking is the current state of public health risk due to the pandemic in this province, and in particular, in the City of Toronto. This pandemic has come in waves. Public health measures taken to combat transmission of the virus, and to minimize serious illness, hospitalization and death, have varied over the last 13 months in light of the amount of transmission of the virus, number of cases and amount of hospitalization and death at various times, as well as our evolving knowledge of how the virus is transmitted.
[9] The situation in this province at present in relation to the virus is dire, and is as bad as it has been during the pandemic. We are in the third wave of the COVID-19 pandemic, and appear not yet to have reached the peak of the third wave. The COVID-19 variants of concern which now make up the majority of cases in this province are significantly more transmissible than the original virus which we faced during the first two waves. The variants of concern also cause more serious illness, increased risk of [page86] hospitalization and death, and appear to cause more serious disease in younger people.[^2]
[10] At present in this province and in this city, there is exponential growth of COVID-19 cases, and the highest numbers of COVID-19 cases at any time during the pandemic, as well as the highest number of people in provincial ICUs due to COVID-19. There is real concern that the ICUs will be overwhelmed, and that doctors will have to engage triage protocols to determine who receives care as resources become strained. Even if case counts level off soon, ICU cases are expected to continue to rise, since ICU admissions are an indicator that rises in tandem with rising cases, but with some delay (a week or two). This delay reflects the time it takes for some of the individuals with the virus to become sick enough to require ICU care.
[11] On the date the argument on this issue was completed, April 9, 2021, there were 4,227 new cases in the province, and 551 people in ICUs with COVID-19. That case count was the second highest daily new case count at that time. On April 11, 2021, a new record daily new case count of 4,456 in the province, and a new record of 593 ICU patients with COVID-19 were recorded. On that date, the City of Toronto reported 1,353 new cases. On April 15, 2021, a further new record daily new case count of 4,736 cases in the province, and a new record of 659 COVID-19 ICU patients were recorded. On April 16, 2021, further new records of 4,812 new cases in the province, 1,469 new cases in the City of Toronto, and 701 ICU patients were recorded. The numbers continue to rise. Although daily case counts fluctuate, the seven-day moving average of daily cases has been rising for weeks. This past week, it surpassed an average of 4,000 new cases per day for the first time during the pandemic. I base these numbers of publicly available provincial data.
[12] I will not summarize the public health measures taken in this province during the first two waves. Rather, I will focus on where we are now, and in particular the past three weeks, which roughly coincides with the start of this trial:
-- On April 1, 2021, the provincial government ordered a province-wide "emergency brake" shutdown effective at 12:01 a.m. April 3, 2021 in response to the "alarming surge" in COVID-19 case numbers and hospitalizations.[^3] [page87]
-- On April 6, Toronto's Chief Medical Officer of Health ordered schools in the city closed to in-person learning effective April 7, 2021. That order was to be in effect (subject to a further order) until April 18, 2021 (the Sunday at the end of spring break). On April 12, 2021, the provincial government ordered that schools will not return in-person after spring break, and education (with certain exceptions for special education) will be by remote learning. This order has no end date at present.
-- On April 7, 2021, the provincial government declared a state of emergency and made a stay-at-home order in response to rapidly increasing COVID-19 case rates, hospitalizations and ICU occupancy, "threatening to overwhelm the health care system". This order was effective April 8, 2021 at 12:01 a.m.[^4] Among other things, this measure requires everyone to remain at home, except for listed essential purposes.
-- In addition, on April 7, 2021, the province directed a redeployment of COVID-19 vaccines to the hardest hit geographical areas, and to certain groups of essential workers.
-- On April 16, 2021, the province ordered further restrictions. The timing of those restrictions comes so late into my writing of this ruling that I will not attempt any summary of them.
(ii) The impact of the pandemic on the courts in Ontario and in the City of Toronto
[13] The second important piece of context for this ruling, and this derives from the public health concerns caused by the pandemic, is that it is not business as usual in the courts at present, as has not been for over one year. I will focus on criminal matters in Toronto, because it is what I am most familiar with. But most of what follows applies across the province, and across the different lines of work this court hears. The restrictions and changes to court operations are unprecedented.
[14] On March 15, 2020, this court stopped in-person operations for all but urgent matters (subject to finishing a small number of trials in progress) for over three months. During that time, the [page88] court began the change to holding a significant amount of remote hearings -- something very new to our criminal justice system. During this time, for criminal matters, new trials were not being heard, at least in Toronto. Criminal team judges in Toronto heard many bail proceedings remotely, with a view, where possible, to reduce the number of people incarcerated in pre-trial detention. This was in an effort to decrease the risk caused by high numbers of people in jails, which are congregate living facilities -- risk both to inmates, and to jail staff and the public at large.
[15] In July 2020, this court began hearing in-person matters again, and continued to improve infrastructure for videoconferencing in order to do trials and motions by videoconference remotely. This process began slowly over the summer, but gained steam into the fall, and is now common. For matters to be heard in person, courtrooms were retrofitted with plexiglass barriers in front of the judge, the witness box, the prisoner's dock, counsel tables, etc. I will return to these barriers later in my reasons, because our understanding of their efficacy at limiting or preventing transmission of the virus has changed over time. Jury trials were still not being heard in the summer (except for completion of matters that had been in progress at the time of the shutdown of in-person operations in March 2020).
[16] In the early fall of 2020, trials were proceeding both in person and remotely by videoconference. With COVID-19 case numbers very low at the end of summer 2020, in September 2020, for a few weeks, jury trials were held in Toronto. Extraordinary measures were put in place to conduct jury selections at a larger location outside the courthouse in order to allow for physical distancing of the jury pool. Unfortunately, COVID-19 case numbers began to rise sharply in the fall, and jury trials were suspended on October 9, 2020 in Toronto, and have continued to be suspended since that time.[^5]
[17] When the second provincial lockdown was put in place in early October 2020, in addition to suspending jury trials in Toronto and other areas, the Chief Justice restricted the number of people in a courtroom to ten people, and directed that "efforts should be made to hear matters remotely, where possible".[^6]
[18] The ten-person limit was lifted effective November 10, 2020 and replaced by a COVID-19 capacity limit which was [page89] determined for each courtroom. The Chief Justice encouraged judges to be flexible and consider individual circumstances in deciding whether to require people to attend in person in courtrooms, and to consider "alternative arrangements".[^7]
[19] On November 21, 2020, the ten-person courtroom limit was reinstated in Toronto and other areas (subject to continuing matters being in the discretion of the trial judge). On that date, the Chief Justice "strongly encouraged" the use of virtual proceedings wherever possible.[^8]
[20] On December 22, 2020, following the announcement of a provincewide lockdown to take effect December 26, 2020, the Chief Justice issued a further Notice to the Profession and the Public.[^9] In that notice, the Chief Justice directed that all matters "should proceed virtually unless it is absolutely necessary to hold the proceeding in-person". The notice further provided that: "Counsel and parties should only request in-person hearings where absolutely necessary, and I have requested all judicial officers, when exercising their authority, to only hold in-person hearings where absolutely necessary."
[21] As the provincial lockdown continued into January 2021, the Chief Justice issued a further Notice to the Profession and the Public on January 13, 2021.[^10] This notice provided further precision on the "absolutely necessary" direction regarding in-person matters, and the same language was used in the February 25, 2021 and March 17, 2021 notices.[^11] Thus, the direction in force from January 13, 2021 was as follows (after stating the continued suspension of jury trials):
All non-jury matters should proceed virtually unless it is absolutely necessary to hold the proceedings in-person. To the greatest extent possible, all other avenues should be explored and implemented. This applies to proceedings throughout the province and will remain in effect until further notice of this Court. [page90]
Counsel and parties should request in-person hearings only where absolutely necessary and I have requested all judicial officers, when exercising their authority, to hold in-person hearings only where absolutely necessary.
[22] On April 8, 2021, the Chief Justice issued the most recent direction in light of the recent provincial stay-at-home order. It provides as follows:
The Court is an essential service and will remain open. However, during the province-wide stay-at-home order that is in effect until May 6, 2021, in-person matters will not be held with the exception of only the most serious child protection matters, urgent family matters and criminal matters, where other options are absolutely unavailable. In determining whether a matter falls into this exceptional category, the Court will take into account the local public health situation and the positions of the parties.
The Court will continue to hear as many matters as possible virtually. Subject to the discretion of the trial judge, in-person matters that are in progress can continue. The positions of the parties should be strongly considered, and alternate arrangements should be made for those who do not wish to attend in-person.[^12]
[23] Finally, I refer also to new requirements and recommendations with respect to masks in courthouses in Ontario set out in a memo to the judiciary from all three Ontario Chief Justices, dated February 12, 2021. Face masks have been required in courthouses, at least in Toronto, since the summer of 2020, when in-person operations resumed. But in the summer and early fall of 2020, speaking for my own practice and what I know of the practice of other judges in Toronto, this did not necessarily mean that witnesses, counsel and the judge remained masked once they were behind the plexiglass walls in the courtroom. My own practice in summer and early fall 2020 was to remove my own mask once I was behind the plexiglass, and to allow counsel and witnesses the choice of removing their mask once they were behind plexiglass. This practice was based on different scientific knowledge about the COVID-19 virus and how it is transmitted at that time, and relatedly about how much protection the plexiglass barriers in the courtrooms actually provide (both of these very focused on fomite transmission from surfaces at that time). This practice was also based on the fact that, in the summer and early fall of 2020, case counts of COVID-19 in Toronto were low. Many judges in this courthouse became more restrictive about mask removal as the fall progressed and case counts rose. The scientific advice in relation to transmission has changed now from the summer and early fall of 2020 -- particularly with the [page91] increased transmissibility of variants of concern. COVID-19 case counts have also increased exponentially now from the summer and early fall of 2020.
[24] The February 12, 2021 memo from the Chief Justices sets out new requirements in relation to masking for members of the public and staff attending at courthouses, and new recommendations for the judiciary. These new recommendations are based on the different risks posed by variants of concern. I reproduce the section of the memo on mask use:
New Masking Requirements
Dr. Warshafsky [a Senior Medical Consultant from the Office of the Chief Medical Officer of Health] reported that due to greater transmissibility of the variants of concern now found in Ontario, enhanced masking is being recommended in Ontario courthouses. As a result, beginning on February 16, 2021:
Members of the public will be provided with a 3-ply source control face covering when entering a courthouse and will be instructed to wear it, rather than their own personal face covering. The only exception will be if a member of the public wishes to wear their own N-95 mask, which is readily identifiable by courthouse screening staff, or if they have a medical reason preventing them wearing a mask.
All court staff will be asked to wear a surgical/ procedure mask, with a filtration layer to further protect the wearer. The Ministry of the Attorney General (MAG) will ask court staff to wear it at all times in a courthouse. These masks will be provided by MAG. A picture of this type of mask is attached.
Like court staff, all judicial officers will be provided with a surgical/procedure mask. At least one will be made available to each judicial officer each day. It is our strong recommendation that all judicial officers wear this mask (or a superior mask such as a fit-tested N-95 mask if they so choose) while in a courtroom. In all common areas of a courthouse, the judiciary must wear this form of mask at all times. It is not necessary to wear a mask while in chambers, provided there are no other individuals in chambers with you.
We also strongly recommend that the judiciary wear this mask on the dais, even if behind plexiglass. As of today, there is conflicting public health advice on whether wearing a mask behind plexiglass provides additional protection. We prefer to err on the side of caution.
We are mindful that staff are being required to wear masks. Masks are worn for our self-protection and for the protection of others. As staff are being required to wear these masks, we believe it is respectful to staff to also wear them. Furthermore, this sends a strong signal to all courtroom participants about the importance of adhering to protective measures.
This raises questions about whether counsel, self-represented parties and witnesses should also wear masks while speaking or giving testimony. It is, again, our strong recommendation that judicial officers require that all counsel, self-represented parties and witnesses remain masked while speaking, even if they are speaking behind plexiglass. We recognize that it may be absolutely necessary for some individuals to remove their masks while speaking [page92] or giving testimony, but this should be done rarely, only when the individual is behind plexiglass, and only if essential in a particular case. If it will be essential to remove a mask, consideration should be given to having some or all of the proceeding conducted virtually.
(Emphasis in original)
[25] This is the context in which I must decide whether some witnesses should be required to remove their masks when they testify in person. I state the obvious when I say that these circumstances are unprecedented, at least in recent memory.
[26] Before proceeding on, I return for a moment to the issue that this proceeding is hybrid -- a mix of remote and in-person proceedings. Some witnesses are being heard by videoconference by agreement of the parties during the judicial pre-trial process (police officers, first responders, medical witnesses and other experts), and some witnesses are being heard in person (civilians). Up until April 9, 2021, I had not revisited this arrangement. This matter was extensively pre-tried by one of the most senior and experienced criminal trial judges in this jurisdiction. There are experienced counsel on both sides. Given the level of experience of those involved in the pre-trials, prior to April 9, 2021, I did not ask for submissions on whether this should be reconsidered. Thus, I make this ruling on the basis that civilians will be attending in person to testify. However, on April 9, 2021, in light of the worsening state of the pandemic in this province and this city, and the Chief Justice's direction of April 8, 2021, I directed counsel that on April 19, 2021, the court would convene by videoconference, and I would hear submissions about how we would proceed. I directed counsel that submissions should address all possible options, including the possibility of proceeding by videoconference, adjournment and any safety concerns of any trial participants about attending in person in the current state of the pandemic.
Analysis
[27] I accept that as the trial judge in this matter, I have the discretion to direct that a witness testify either with or without a mask, for either all or part of their testimony. The direction of the Chief Justice does not bind me in my role as a trial judge. But the current state of the pandemic in this province and this city, which lies behind the recent direction of the Chief Justice, is evidence I must consider. On consent, counsel placed various recent scientific evidence in relation to the pandemic and measures to limit transmission of the virus before the court.
[28] Similarly, although I have referred to the actions taken by the provincial government to address the pandemic as part of the factual context before the court, because of the principle of judicial [page93] independence, I am not bound in my role as a trial judge by the actions taken by the provincial government. Indeed, the courts are specifically exempted from the restrictions the provincial government has put in place. However, similarly to my comments about the direction of the Chief Justice, the medical information and current state of the pandemic which has driven the provincial government response is the same medical information and facts about the pandemic which constitute the context in which I must consider the issue of witness masking.
[29] I accept that the approach applied by the Supreme Court in S. (N.) is the best framework to apply to the issue before me relating to masking and witnesses. I say this because it is a framework designed to balance fair trial rights and other important competing interests.
[30] Counsel for Mr. MacKinnon also relied on the S. (N.) decision because it involves the issue of a witness wearing a face covering, in that case a niqab, and how to balance a witness' right to freedom of religion with the fair trial rights of the defendant. I accept that the approach in S. (N.) is the right test to apply. However, I would add that given the different interests at stake in terms of public health in this case, it is not clear to me that S. (N.) is binding on me on the issue of witness masking for public health reasons during the pandemic. But whether or not it is binding, I apply the balancing approach from S. (N.).
[31] It is important to bear in mind that the context in which I am asked to rule about witnesses wearing face masks covering their nose and mouth while they testify is very different than the context in S. (N.). Although the parts of the face covered with the types of masks people are wearing for public health reasons during the pandemic bears some similarity to the parts of the face covered by the niqab at issue in S. (N.),[^13] the interests at issue are not the same, at least on one side of the balance.
[32] S. (N.) involved a time when the courts were operating as usual, and a witness who wanted a change from the normal rule that witnesses testify with their faces in view, based on her religious belief. In essence, she sought an accommodation based on her religious belief. Here, the public health claim is broader and more generalized. The courts are not operating as usual. For public health reasons we are not holding jury trials. For public health [page94] reasons the Chief Justice has directed that in-person trials only be conducted if other options are "absolutely unavailable". Our courtrooms have been retrofitted with plexiglass barriers in front of the judge, the witness box, the prisoner's dock, counsel tables, etc. Where trials do take place in person, numbers in courtrooms are limited. The judge, counsel, the defendant and observers are masked throughout proceedings at present. The question raised on this motion is, should the public safety precaution of masking be applied to all witnesses who are required by the court to attend in person? The generalized public safety concern due to the pandemic may weigh differently in the balance than the individualized religious concern in S. (N.).
[33] I note as well that the pandemic is a time-limited concern, unlike the freedom of religion claim in S. (N.). In saying this, I acknowledge that, unfortunately for all of us, there is uncertainty as to the length of time we will be living with the pandemic and the restrictions to protect our health that flow from it.
[34] The factors I have just outlined make one side of the balance very different in the case before me than in S. (N.). But the other side of the balance, the defence's asserted interest in seeing the full face of witnesses, particularly where credibility is significantly in issue for the witness, is essentially the same interest asserted in S. (N.). I note that S. (N.) is clear that the interests must be assessed case by case, an issue I return to below.
[35] The significance of the pandemic and the need for public safety restrictions to limit or prevent transmission of the virus is a very important public interest. The balancing during a once-in-a-century pandemic may not be the same as in non-pandemic times. This has been recognized by the Supreme Court in the context of considering potential justification of s. 7 Charter violations in Reference re Motor Vehicle Act (British Columbia) S 94(2), [1985] 2 S.C.R. 486, [1985] S.C.J. No. 73, 1985 CanLII 81, at p. 518 S.C.R., and Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, [2002] S.C.J. No. 3, 2002 SCC 1, at para. 78. In those cases, in considering whether a s. 7 infringement can ever be justified under s. 1 of the Charter, the court held that s. 7 infringements may be justified in "exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like". We fall squarely within an exceptional set of circumstances now, due to the pandemic. Although the court in Reference re Motor Vehicle Act and Suresh was discussing whether s. 7 infringements can be justified under s. 1, which is not exactly the same context as this motion, it is important to note that the issue before the court also involves the balancing of s. 7 rights -- the defendant's right to a fair trial on the one hand, and the right to security of the person of witnesses and [page95] everyone else present in the courtroom in the context of the health risks posed by the pandemic on the other.
[36] The test in S. (N.) is designed to balance competing interests. In that case, it was the witness' freedom of religion, and the defendant's right to a fair trial. The test in S. (N.) is derived from the balancing test developed in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, [1994] S.C.J. No. 104, 1994 CanLII 39, and R. v. Mentuck, [2001] 3 S.C.R. 442, [2001] S.C.J. No. 73, 2001 SCC 76. I note that the test also bears some similarity to balancing tests used in other areas of law, for example: under s. 1 of the Charter, particularly the final balancing of the deleterious effects of a Charter infringing measure against the purpose the measure is intended to serve; and the balancing applied at the third branch of the test for an injunction, recently applied in the context of balancing pandemic public health restrictions on the number of people who could attend a religious service and the right to freedom of religion: Toronto International Celebration Church v. Ontario (Attorney General) (2020), 154 O.R. (3d) 122, [2020] O.J. No. 5733, 2020 ONSC 8027 (S.C.J.), at paras. 26-33.
[37] The framework established by the majority in S. (N.) is a balancing test structured around four questions (I adapt the questions slightly to the current context): (i) Would requiring the witness to remove their mask interfere, in this case, with public health measures to limit transmission of the virus, and protect the safety of people in the courtroom? (ii) Would requiring the witness to wear a mask while testifying create a serious risk to a fair trial? (iii) If both an important public interest (here public health measures) and trial fairness are engaged on the facts, is there a way to accommodate both and avoid the conflict between them? and (iv) If no accommodation is possible, do the salutary effects of having the witness remove the face covering outweigh the deleterious effects of doing so?
[38] For sake of clarity of the record, the type of mask I am discussing is the type of mask that covers the face from the nose to the chin, and from approximately two inches in front of each ear, and typically attaches with loops over the ears -- i.e., a mask that covers the parts of the face that a surgical mask covers.
(i) Would requiring the witness to remove their mask interfere with public health measures to limit transmission of the virus and protect the safety of people in the courtroom?
[39] The first branch of the S. (N.) framework requires that I consider whether requiring a witness to remove their mask would interfere with public health measures to limit transmission [page96] of the virus and protect the safety of people in the courtroom. I find that the answer to this question is clearly, yes.
[40] Until a significant percentage of the population is vaccinated, the primary means to limit the spread of the COVID-19 virus are public health measures, including staying at home as much as possible, wearing masks, avoiding in-person events with others outside one's household, physically distancing and environmental measures, such as the plexiglass barriers in the courtroom, and ventilation (I do not address surveillance testing, as this is not an option presently available in the court environment in this province).
[41] Vaccination of large numbers of residents of the city and the province is still ramping up. The most recent publicly available data is that in the range of 20 per cent of residents of the City of Toronto, and a similar percentage of residents of the province over the age of 18 have received at least their first dose of a COVID-19 vaccine.[^14] The vaccines currently approved for use in Canada all require two doses. In order to give some level of immunity to as many people as possible as quickly as possible, the current policy in Ontario is to delay second doses for 16 weeks. I note that although people who work in the courts (court staff, counsel, judges) are considered essential workers, they are lower down in the vaccine framework than many other groups, and thus are not yet eligible for vaccination unless they fall within some other priority group. I do not say this to criticize the vaccine priority framework in any way. Decisions about vaccine priority are difficult policy choices, based on risk of exposure and risk of severe disease or death for various groups, considering age, health circumstances, work circumstances, whether one resides in a particularly hard-hit area and other factors. But the effect of the current stage of vaccinations is that there is no question that a significant percentage of the people present in the courtroom for in-person portions of this trial will not be vaccinated at all, and almost certainly none will have received a second dose and be fully vaccinated in the near future.
[42] Staying home and not engaging in indoor events with others outside one's household is the strongest and most reliably preventive measure against transmission of the virus. It is for this reason that there is currently a provincial stay-at-home order, except for certain essential services and activities. It is for this [page97] reason that the current direction from the Chief Justice is that matters proceed virtually except for the most serious matters, and where other options are absolutely unavailable.
[43] As I have noted above, for the purposes of this ruling, I make this ruling on the footing that some of this trial is proceeding in person. But as I have noted, I will be hearing submissions in light of the current public health situation and the April 8, 2021 Notice to the Profession on April 19, 2021.
[44] By conducting any of this proceeding in person, we have already taken a step away from the safest and best means to prevent transmission of the virus. I appreciate that there are trade-offs and balances, and fair trial rights may justify the in-person proceedings. But the fact of proceeding in person creates the requirement to ensure that the courtroom environment is safe for everyone who enters the courtroom.
[45] It is also important to bear in mind the coercive power that the court exercises towards witnesses. Witnesses are compelled by subpoena to attend and to testify. In this case, the civilians are being compelled to leave their homes and attend in person, during the pandemic, during a stay-at-home order, on the basis that this court proceeding is an essential service.
[46] I also note that civilian witnesses are being required to attend in person to testify, and are being subjected to the greater risks that that creates, where non-civilian witnesses are not being required to do so. In the pre-trials of this matter, conducted by one of my colleagues, it was agreed that police witnesses, first responder witnesses and experts such as medical doctors and psychologists, could testify remotely. I appreciate that to some extent, the fact of being a civilian witness in this trial coincides with credibility being in issue (although for some civilian witnesses, credibility is less in issue than for others). Thus, the civilian witnesses are being required to take on the risk of attending a courthouse in person during the stay-at-home order, when non-civilian witnesses in this trial are not being asked to do so. And on top of being required to attend in person, the request is that they be required to unmask while they testify. And they are being asked to do so when every other person in the courtroom will remain masked -- counsel, staff, the defendant and myself.
[47] Because bringing people from across the city together in a courtroom creates the risk of transmission of the COVID-19 virus, it is essential that public health measures be taken in the courtroom to limit the risk of transmission of the virus. The need to take measures to limit transmission of the virus is heightened by the increased transmissibility of variants of concern. [page98]
[48] The first protective measure that people entering the courthouse will encounter is the active screening questionnaire required for anyone entering the courthouse (including members of the judiciary). However, active screening is far from foolproof. It is accepted now that in many cases, individuals infected with COVID-19 will be entirely asymptomatic, or have a period where they are pre-symptomatic, but infectious. These people would pass the active screening measures (unless another factor such as having been outside Canada recently or in close contact with a positive case applies). Given the reality of asymptomatic and pre-symptomatic infection, the active screening questioning before individuals are permitted to enter the courthouse does not prevent infected persons entering (although it reduces it). For this reason, there is a need for measures in the courthouse and the courtroom to limit transmission of the virus.
[49] The current state of scientific knowledge is that the virus is transmitted primarily by aerosols. The plexiglass screens in the courtrooms do not provide complete protection from aerosol spread. As Crown counsel noted, and I observed in the courtroom, the plexiglass screens of all participants are open at the back and the top. In addition, the screens at the counsel tables are not continuous on the sides. And the screens for the witness box, in addition to being open on top and at the back, are open on the left side (the side away from the judge).
[50] Where people are required to come together in an indoor space (such as a courtroom), it is recommended that multiple public health measures be implemented to minimize the risk of transmission of the virus. The Public Health Ontario document Masks for Source Control in Non-Healthcare Workers (dated November 5, 2020), filed during submissions (on consent), states that "a comprehensive strategy to reduce the risks of COVID-19 transmission in the workplace would include as many controls as possible" (and then lists various types of measures such as barriers, scheduling to avoid in-person contact, physical distancing, hand and other hygiene measures such as masking for source control and personal protective equipment).
[51] Similarly, the February 12, 2021 memo from the three Chief Justices, based on medical advice from the Office of the Chief Medical Officer of Health, recommends "multiple overlapping layers of protection", including masking of all persons in courthouses. In light of the increased transmissibility of variants of concern, based on medical advice, it is required that staff and members of the public in the courthouse wear a mask at all times (subject to the discretion of a trial judge in a courtroom). It is also strongly recommended that judges wear a mask on the dais [page99] (as I do), and that judicial officers require all counsel, parties and witnesses to remain masked, even while speaking.
[52] It is clear that masking is an important measure to limit transmission of the virus when people are together in an indoor environment. It is currently mandated in Ontario workplaces, stores and this courthouse (subject to my discretion as a trial judge).
[53] As I have noted, the current scientific knowledge is that this virus is transmitted by aerosols. Testifying involves a witness speaking, sometimes for long periods of time, depending on the length of any particular witness' evidence. Speaking releases aerosols, although probably not as much as singing.
[54] In this case, on the record before me, we will be hearing multiple days of evidence by civilian witnesses. I inquired about the anticipated length of the evidence of Mr. Deliva, Mr. Forgues and Mr. Dimitruk. A reasonable estimate at this point is in the range of three days total. In addition, there are other civilian witnesses. Estimating conservatively (in favour of a shorter time), it appears likely that all of the civilians together will take at least four to five days' time (and given the speed at which other evidence has gone in so far in this trial, possibly longer. I mean no criticism of either side by that comment; estimating how long evidence will take is an imprecise art, not a science). Thus, what I must weigh is the prospect of four to five days of testimony from approximately six to eight civilian witnesses (including civilians anticipated to be called as witnesses by the defence). Thus, the defence request is not to have witnesses unmasked for a brief period of time.
[55] In the current circumstances of more transmissible variants of concern (which cause more hospitalization and death), the current high case counts in the province and the city, and the fact that staff, counsel and some witnesses in this trial are attending court in person during the time of the emergency stay-at-home order, I am satisfied that there is an important public health interest in requiring people in the courtroom to wear masks, and that interest would be compromised if witnesses are required to remove their masks when they testify in person.
[56] As I have noted above, in the summer and early fall of 2020, I offered witnesses the choice whether to keep their mask on once they were behind the plexiglass of the witness box. That was in the context of science at the time that suggested that COVID-19 was primarily transmitted from surfaces (by fomites), and thus that the plexiglass barriers provided adequate protection against transmission of the virus. At that time, I would remove my own mask on the dais once I was behind the plexiglass, and allow [page100] counsel to do so at the counsel tables (behind plexiglass). That was also at a time when COVID-19 case counts in the city were very low, and we were not facing the increased transmissibility of variants of concern. Things have changed now. Our knowledge of how this virus is transmitted and how to limit transmission is based on science. Because of this fact, and the fact that it is a new virus, our understanding of how to limit or prevent transmission has changed over time. It is clear now that the primary method of transmission is by aerosols. Because of that fact, the plexiglass barriers alone do not provide sufficient protection. And as I have outlined above, we are now facing record numbers of cases, and ICU admissions, and the increased transmissibility of variants of concern, as well as increased risk of serious disease, hospitalization and death. Measures taken in the summer and early fall of 2020 are not sufficient now (and in retrospect, one wonders if they were safe then).
[57] The defence made the submission in reply that wearing a mask does not protect the wearer from transmission of the virus, but protects others. I believe that this submission was made with a view to saying that the civilian witnesses themselves will not be put at increased risk if they are required to testify without a mask. I do not accept this submission for two reasons.
[58] First, I do not accept that the current state of scientific knowledge is that there is no benefit to the mask wearer in terms of reduced risk of contracting the virus. That may have been the state of scientific belief in early and mid-2020.[^15] It is not the state now.[^16] Although it may be true that masks provide greater [page101] protection for others by preventing someone who is wearing a mask from transmitting the virus to others by restricting outflow of the virus (i.e., as "source control" of aerosols potentially containing the virus when the mask wearer exhales or speaks), the current evidence indicates that they also provide some protection for the wearer.
[59] Second, even if the defence were correct that masks do not provide any protection to the wearer, in terms of the request to unmask witnesses, that is only half of the equation. The current science is undisputed that masks provide protection to people other than the wearer, as source control of aerosols potentially containing the virus when the wearer exhales or speaks. Unmasked witnesses create increased risk to everyone else in the courtroom -- even if others in the courtroom are masked (although as I have noted, keeping others masked provides some level of protection) -- this is risk to court staff, counsel, myself and observers (if any).
[60] For these reasons, in the present state of scientific knowledge available to the court, and the present state of the pandemic in this city, I am satisfied that requiring witnesses who testify in person to remove their mask would interfere with public health measures to limit transmission of the COVID-19 virus, and protect the safety of people attending in the courtroom.
(ii) Would requiring the witness to wear a mask while testifying create a serious risk to a fair trial?
[61] Under the second branch of the S. (N.) framework, I must consider whether requiring the witness to wear a mask while testifying creates a serious risk to a fair trial.
[62] Mr. MacKinnon is facing one count of second-degree murder, and one count of attempted murder. Apart from a first-degree murder charge, these are among the most serious charges in the Criminal Code. His interest in a fair trial is substantial. I would add that the public also has an interest in all trials being fair. I accept as well that given the liberty interest at stake for Mr. MacKinnon as the defendant in a criminal trial, his fair trial rights must be zealously protected, even in the face of a global pandemic: Woods (Re), [2021] O.J. No. 1631, 2021 ONCA 190, at para. 35. [page102]
[63] I accept the defence submission, which Crown counsel did not contest, that for some of the civilian witnesses, credibility is very much in issue. I base this conclusion on counsel's submissions, on the evidence I have heard so far in this trial, and on the materials contained in the hearsay and Scopelliti motions filed with the court. In particular, I accept that credibility (and reliability) appears likely to be very much in issue for Mr. Deliva, Mr. Forgues and Mr. Dimitruk. They are also clearly central witnesses in this case. Mr. Deliva is the victim in the attempted murder count, and was with Mr. Spilchen, the deceased and Mr. Forgues for most of the evening, and present for the stabbing and the events immediately preceding the stabbing. Mr. Forgues was with Mr. Deliva and Mr. Spilchen for most of the evening, and present for the stabbing and the events immediately preceding the stabbing. Mr. Dimitruk was with the defendant for most of the evening, and also was present for the stabbing and the events immediately preceding the stabbing.
[64] Credibility appears to be less in issue for the other civilians. And their centrality to the case varies. One witness, Mr. Carter, is central to the defence Scopelliti application.
[65] In S. (N.), the majority accepted that a witness' face being covered may impede credibility assessment by the trier of fact and may impede the ability to cross-examine (at paras. 20-27). This finding was based primarily on the tradition in common law courts that witnesses testify in person, in open court, and with their faces visible to the judge (and jury, if there is one). I note as well that the Supreme Court was acting on the record before the court. The majority accepted that long-standing assumptions of the common law can be displaced if shown to be erroneous or based on groundless prejudice (at para. 22). The majority also held that being able to see the face of a witness is not the only, or the most important, factor in either assessing credibility or cross-examination (at para. 27).
[66] The court also held that assessing whether there is a serious risk to trial fairness from a witness testifying with a face covering in any particular case will also depend on the evidence the witness is anticipated to provide, including the extent to which the witness' credibility is in issue (para. 28).
[67] In my view, it is important not to overstate the importance of seeing a witness' face to assessing the credibility and reliability of the witness. Claims about the importance of seeing a witness' full face are based on the claim that observing the witness' demeanour is important to assessing credibility and reliability (or as a cue in cross-examination). However, the Court of Appeal has cautioned against overreliance on demeanour evidence in [page103] assessing credibility and reliability: R. v. Rhayel, [2015] O.J. No. 2675, 2015 ONCA 377, 324 C.C.C. (3d) 362, at paras. 85-89; R. v. P. (D.), [2017] O.J. No. 1593, 2017 ONCA 263, at para. 26. Reliance on demeanour in assessing credibility and reliability is based on generalizations about what people's demeanour means, and such generalizations can be wrong.
[68] In addition, the experience of trial judges with witnesses wearing masks for public health reasons during the pandemic is not information that was before the Supreme Court in S. (N.). As I advised counsel during submissions, in the fall of 2020, I conducted in-person trials where witnesses whose credibility was very much in issue testified wearing masks (including a defendant who testified in one trial). It was my experience as a trial judge who has had witnesses testify before me wearing masks that it did not affect my ability to assess the credibility and reliability of the witnesses' evidence.
[69] My experience with masked witnesses during the pandemic is consistent with my experience as a trial judge in general: that the substance of a witness' evidence, and its relationship to the other evidence in a trial, are better guides to assessing credibility and reliability than a witness' demeanour. I refer to factors such as the logic and consistency of a witness' version of events; whether a witness' evidence is internally and externally consistent; whether the evidence of a witness is consistent or inconsistent with objective evidence; the consistency or lack of consistency in the witness' evidence in cross-examination; whether a witness had made statements inconsistent with their evidence in the past on matters of significance; evidence of bias, interest, or a motive to lie on the part of a witness; and the witness' ability to recall events. I do not entirely rule out demeanour, because as a matter of law, it is a factor that a trier of fact is entitled to consider. But in my experience, it is of limited value.
[70] I note as well that the fact that parts of the face of a witness will be covered if they are required to wear a mask for public health reasons does not remove all indications of demeanour from either counsel or the court. The other portions of the witness' face will still be visible, as will the witness' body language (at least in the upper body). The witness' voice and hesitation, if any, will be audible. Expressions of emotion from the voice or the rest of the face or upper body will be visible and audible.
[71] The submission put before me by the defence is that for all of the civilian witnesses, there is a serious risk to trial fairness if they are required to wear a mask while they testify. I will address first the civilians other than Mr. Deliva, Mr. Dimitruk and Mr. Forgues. For the civilian witnesses apart from Mr. Deliva, [page104] Mr. Dimitruk and Mr. Forgues, I have been given no submissions as to why this is so (other than that Mr. Carter is important to the Scopelliti application -- but no submission was made that his credibility will be significantly in issue). I note that I heard the evidence of the bartender, Ms. Neupauer, while she wore a mask. I did not find that the mask interfered with my ability to appreciate her evidence (my ultimate assessment of her credibility and reliability will have to wait until I have heard all of the evidence and submissions). I am not satisfied for the civilians other than Mr. Deliva, Mr. Dimitruk and Mr. Forgues that there is a serious risk to trial fairness if they testify while wearing a mask.
[72] For Mr. Deliva, Mr. Dimitruk and Mr. Forgues, the submission is made that their credibility will be significantly in issue, and they are central to the issues in the case. I accept those two factual propositions for those witnesses. However, considering the holding of the majority in S. (N.), the issues in this trial, the cautions from the Court of Appeal about overreliance on demeanour, and my own experience as a trial judge -- in particular having heard witnesses testify during the pandemic in person wearing surgical masks (or similar styles of masks) -- I am not persuaded that requiring witnesses to wear a mask while testifying in person would create a serious risk to a fair trial in this case.
[73] Counsel for Mr. MacKinnon made the submission that to require all witnesses who testify in person to wear masks for public health reasons, would be to create a black and white rule, and would be contrary to the contextual balancing approach set out by the majority in S. (N.). That is not my ruling. I have engaged in a contextual balancing. I am simply not satisfied in the circumstances of this case, and given judicial experience during the pandemic, that there is a serious risk to Mr. MacKinnon's fair trial rights from requiring civilian witnesses to wear masks when they testify.
[74] One could imagine circumstances where there could be a risk to fair trial rights, for example where something about a particular witness' appearance was relevant to a fact in issue in a trial that required seeing their full face (for example, an "other suspect" defence where a witness is the other suspect, and thus their appearance could have relevance on issues of identity). I note that such an interest is much more specific, and could be accommodated by having the mask removed for a short time, not for the witness' full testimony. Similarly, in cases where identity is in issue, one could imagine the Crown putting forward an interest in having a defendant remove their mask briefly for purposes of identification evidence (subject to consideration of the weaknesses of an in-dock identification). [page105]
[75] I do not accept the general claim that a witness wearing a surgical mask while they testify poses a serious risk to trial fairness. I should add, that outside of the pandemic, this would not allow witnesses to wear surgical masks at will when testifying. As with hats, if there is no reason for a person to wear a face covering, it would not be considered appropriate courtroom attire.
[76] Having reached this conclusion, it is not, strictly speaking, necessary for me to continue to the third branch of the S. (N.) framework. However, assuming for the sake of argument that there is a risk to a fair trial in this case from witnesses testifying in person being required to wear a mask, I consider the third branch of the S. (N.) framework. In my view, there is an alternative that can accommodate both the public health interest and the defendant's fair trial right -- testimony by videoconference.
(iii) Is there a way to accommodate both the public health interest and the defendant's fair trial right?
[77] The third branch of the S. (N.) framework requires the court to consider if there is a way to accommodate the public health interest in measures to limit transmission of the virus, in particular, masks, and the defendant's fair trial right. The court must consider if there are "reasonably available alternative measures" that would avoid the conflict.
[78] In this case, I find that the alternative of hearing testimony by videoconference can accommodate both the public health concerns, which support masking for in-person attendance in a courtroom, and the defendant's interest in seeing the full faces of witnesses, to the extent that that is protected by his right to a fair trial.
[79] I note in S. (N.), the Supreme Court did not decide on the issue of testimony by videoconference as a means to accommodate both interests, because the final decision was remitted to the preliminary inquiry judge to decide whether the witness would be permitted to wear the niqab while testifying, in accordance with the reasons given by the Supreme Court (at paras. 33, 57). The Supreme Court expressed doubt on the facts about whether videoconferencing testimony could accommodate the religious belief at issue in S. (N.), since the witness' religious belief required her to wear a face covering where men other than close family members could see her face. But it left the issue of videoconferencing ("closed-circuit television") for consideration by the preliminary inquiry judge under the third branch of the analysis (at paras. 4, 33). [page106]
[80] I find based on the experience of the courts pre-pandemic, and during the pandemic, as well as my own experience with trials and evidence by videoconference during the pandemic, and CCTV before the pandemic, that witness evidence by videoconference is a reasonable alternative that can accommodate both the public health concern to limit spread of the COVID-19 virus, and the defendant's fair trial right. Testimony by videoconference is available pursuant to s. 714.1 of the Criminal Code, R.S.C. 1985, c. C-46, if the court is of the opinion that it would be appropriate, having regard to all the circumstances.
[81] Although in-person testimony is the default in our court system, evidence by CCTV or by videoconference does not infringe fair trial rights: Criminal Code, ss. 486.2, 714.1, 714.2.
[82] I will begin with pre-pandemic case law and experience. Pursuant to s. 486.2, in certain circumstances, witnesses may testify by CCTV. In practical terms, CCTV is not different than videoconference evidence, in that the witness appears on video (although from inside a courthouse). CCTV pursuant to s. 486.2 is most often used in prosecutions of sexual offences. In my experience with CCTV evidence in prosecutions of sexual offences, typically witness credibility is very much in issue. Testimony by CCTV allows the court, the defendant and counsel to observe the witness, including their demeanour, while they testify. The use of CCTV evidence under s. 486.2 does not infringe fair trial rights: R. v. Levogiannis (1993), 16 O.R. (3d) 384, [1993] 4 S.C.R. 475, [1993] S.C.J. No. 70, 1993 CanLII 47, at pp. 484-85 S.C.R.; R. v. Belem, [2017] O.J. No. 1882, 2017 ONSC 2213 (S.C.J.), at paras. 31-33.
[83] Sections 714.1 and 714.2 provide for evidence by videoconference (with different presumptions depending if the witness is in Canada or outside Canada). Pre-pandemic case law recognizes that modern videoconferencing technology is of sufficiently high quality that essentially nothing is lost of the ability to observe witness demeanour in testimony by videoconference: R. v. Zaganjori, [2019] O.J. No. 2144, 2019 ONSC 2518 (S.C.J.), at para. 14; R. v. Al-Enzi, [2017] O.J. No. 141, 2017 ONSC 304 (S.C.J.), at para. 10; R. v. Francis, 2020 ONSC 477 (S.C.J.), at para. 70. There is a need to ensure that the place the witness testifies is suitable, and safeguards are in place to prevent the witness being improperly influenced, and to ensure that, for example, they only have with them documents they are entitled to have. But this is something the courts are capable of addressing and monitoring: Zaganjori; Al-Enzi, at paras. 10-12; Francis, at paras. 86-87. Testimony by videoconference has also been found by this court not to infringe fair trial rights: R. v. Schertzer, [page107] [2010] O.J. No. 6281, 2010 ONSC 6686 (S.C.J.), at paras. 35-39, per Pardu J., as she then was.
[84] Finally, experience with videoconferencing during the pandemic confirms the pre-pandemic experience that videoconferencing is a reasonable alternative to in-person testimony that allows counsel, the parties, and the judge to appreciate a witness' evidence, including demeanour. Indeed, from the judicial perspective, to the extent one makes the claim that demeanour is important, videoconferencing has the benefit of allowing the judge to see the witness' face head on, rather than a slice of the side of their face. I have conducted trials by videoconference during the pandemic, including where credibility has been in issue, and my experience is that it works well for the purposes of cross-examination, and hearing and seeing the evidence of a witness, and enables me as a trier of fact to assess witness credibility and reliability.
[85] In the context of the pandemic, other judges have concluded that videoconference evidence is an appropriate alternative to in-person attendance, even where the credibility of particular witnesses is significantly in issue. In a decision which dealt with the same issue as this case -- a request that witnesses testify in person without a mask -- Bourgeois J. of the Ontario Court of Justice declined to direct that in-person witnesses remove masks during testimony, and held that videoconference testimony was a reasonable alternative that would allow witnesses to testify safely, and still permit the court to assess credibility and reliability: Bdeir. Bdeir was a sexual assault trial, where credibility was the central issue.
[86] In a decision involving a request to order videoconference proceedings in a child protection matter, Kwolek J. of the Ontario Court of Justice held that videoconference testimony would allow the witness to testify safely, and still allow the trial judge to assess credibility and reliability of witnesses: Children's Aid Society of Algoma v. P. (T.), [2021] O.J. No. 1259, 2021 ONCJ 150.
[87] As I have noted above, videoconference is being used by agreement in this case for the evidence of police witnesses, experts and first responders. To date, we have heard the evidence of three police witnesses by videoconference, some of it quite lengthy. The videoconferencing technology has worked well, and allowed counsel, the defendant, and the court to observe the witnesses while they testified.
[88] The defence raised the concern that witnesses may take their testimony less seriously if they are testifying from home. Although this concern strikes me as somewhat speculative at this stage, it can be addressed by having witnesses testify from one of [page108] the witness rooms available to Crown counsel (or indeed, the CCTV room in the courthouse, if it is not otherwise in use).
[89] I find that under the third branch of the S. (N.) analysis, evidence given by videoconference is a reasonable alternative means to protect the defendant's interest in seeing the witnesses' faces, and having his counsel and the court see the witnesses faces.
[90] Another submission I consider within the realm of alternatives under the third branch of S. (N.) is the issue of location of witnesses in the courtroom. The defence made the submission that when they testify, if they testify in person, the civilian witnesses could be situated in a place in the courtroom further away from others, such as the jury box. This would make the witness further away from me as the presiding judge. But in all likelihood, the witness would be either a similar distance from, or closer to, Crown counsel. In light of the current state of scientific knowledge about the virus and aerosol transmission, I am not satisfied that this is an appropriate alternative that would meet both the public health interest and the defendant's interest in seeing the witnesses' faces. It would not address the public health concern of the masking requirement.
[91] The defence also made the submission that we make decisions balancing risk, and one should not conclude that witnesses cannot be unmasked because the risk of unmasking is not zero. I agree that it is not realistic to get to zero risk of virus transmission, and that there are various trade-offs and balancing. A major trade-off which leads to the need for this ruling is that the civilian witnesses are coming in person to testify. Bringing witnesses from across the city to testify in person, as well as bringing counsel, the defendant, myself and staff into the courtroom in itself creates risk of transmission of the virus that would not exist with remote proceedings. In my view, in that context, the creation of further risk by having witnesses testify unmasked for multiple days is not justified where the reasonable alternative of remote videoconference proceedings exists. Based on case law and experience, both before and during the pandemic, and with current technology, videoconferencing is fully satisfactory for counsel to cross-examine, and for a judge to assess credibility and reliability.
[92] Another possible alternative is an adjournment. I will not consider this in detail for several reasons. First, it is not necessary to do so, because I have found that testimony by videoconference is a reasonable alternative that will accommodate both the public health interest, and Mr. MacKinnon's fair trial right. Second, and adjournment as a reasonable alternative was not put forward in [page109] submissions by either the Crown or the defence. Whether or not an adjournment is a reasonable alternative in any given case is a very fact-specific assessment, and in the absence of submissions on the issue, it is difficult for me to consider. However, in some cases an adjournment may be a reasonable alternative to consider. The current public health measures for the pandemic are not forever, unlike the religious claim made in S. (N.).
[93] For these reasons, I find that in this case, testimony by videoconference is a reasonable alternative to requiring witnesses who testify in person to remove their masks, which can accommodate both the public health interest during the pandemic, and the defendant's fair trial rights.
(iv) Do the salutary effects of having the witness remove the face covering outweigh the deleterious effects of doing so?
[94] In light of my finding that both the public health interest and the fair trial interest can be accommodated by testimony by videoconference, it is not necessary to reach the fourth branch of the S. (N.) analysis.
Conclusion
[95] This is a difficult issue. There are no easy answers. But considering the balancing approach from S. (N.), and all of the factors I have weighed in light of the current circumstances created by the pandemic, I find as follows:
(i) Requiring witnesses to remove their masks while testifying in person would interfere with the important public health interest of limiting transmission of the COVID-19 virus in the courtroom -- a risk that is heightened now with the increased transmissibility of variants of concern, the increased risk of hospitalization and death from variants of concern, and the present high case counts in the City of Toronto.
(ii) I find that requiring that witnesses who testify in person to remain masked during their testimony does not create a serious risk to trial fairness.
(iii) In the alternative, even if there is some minimal risk to trial fairness from not seeing the full faces of in-person witnesses during their testimony, the alternative of testimony by videoconference would allow counsel, the defendant, and me as the judge to see witnesses' full faces. It would allow counsel to cross-examine, and me to appropriately assess the credibility and reliability of witnesses, even where credibility is significantly in issue for a particular witness. This is [page110] available pursuant to s. 714.1 of the Criminal Code and is being used for many witnesses in this trial. Videoconference testimony would protect the public health interest in COVID-19 safety precautions, while allowing the defendant, counsel and the court to see the witnesses' faces.
[96] I direct that all witnesses who testify in person will remain masked during their testimony. As discussed during the course of submissions, this ruling applies to all witnesses who testify in person, with the exception that I have not yet ruled on whether the defendant will be required to remain masked if he elects to testify. I have not yet heard submissions on this issue. I accept that there may be different issues to balance on one side of the scale when the issue is a defendant masking during his own testimony; although the public health concerns on the other side of the balance are unlikely to be different (subject to a change in the state of the pandemic at the time the issue is considered). I express no view at this time on the issue of the defendant being masked if he testifies.
[97] I note that Crown counsel made submissions about particular health conditions of Mr. Deliva and Mr. Dimitruk (which will be relevant for other reasons and will come into evidence in the trial), which in the Crown's submission also supported particularized health concerns for those two witnesses if they were required to unmask. Although I accept that particularized health concerns of a witness are a factor that a court may consider in weighing the issue of witness masking (as they are in the bail context during the pandemic), I want to be clear I do not base my ruling on any particularized health concerns of any witnesses.
[98] I want to say one more thing before closing. I want everyone involved in this case to understand that I believe that assessing the evidence fairly to both sides and ensuring a fair trial is my most important role as a judge. I would not make this ruling if I felt it would endanger Mr. MacKinnon's right to a fair trial.
[99] I thank counsel for their submissions on this difficult issue, which were made professionally, and in the highest traditions of the bar.
Witnesses directed to remain masked.
Notes
[^1]: The defence consented to one civilian, Ms. Neupauer, the bartender, testifying wearing a mask. However, the position of the defence is that they agreed to that so that the matter could proceed, and that their basic position is that all of the civilians should testify without a mask.
[^2]: COVID-19 Science Table, "COVID-19 Hospitalizations, ICU Admissions and Deaths Associated with the New Variants of Concern" (March 29, 2021).
[^3]: Office of the Premier, "News Release: Ontario Implements Provincewide Emergency Brake: All 34 Public Health Unit Regions Move into Shutdown" (April 1, 2021), online: Ontario Newsroom news.ontario.ca/en/release/ 60986/ontario-implements-provincewide-emergency-brake.
[^4]: Office of the Premier, "News Release: Ontario Enacts Provincial Emergency and Stay-at-Home Order: Additional measures needed to protect health system capacity and save lives during third wave of COVID-19" (April 7, 2021), online: Ontario Newsroom new.ontario.ca/en/release/61029/ontario-enacts-provincial-emergency-and-stay-at
[^5]: Notice to the Profession and Public Regarding In-Person Operations in Toronto, Brampton and Ottawa (October 9, 2020) ["October 9, 2020 Notice to the Profession"].
[^6]: October 9, 2020 Notice to the Profession.
[^7]: Notice to the Profession and Public Regarding Jury Trials and In-Person Operations in Brampton, Newmarket, Toronto and Ottawa (November 5, 2020); Notice to the Profession Regarding Jury Trials and In-Person Operations in Brampton, Milton, Orangeville and Toronto (November 10, 2020).
[^8]: Notice to the Profession and the Public Regarding Court Proceedings - November 21, 2020, updated December 14, 2020.
[^9]: Notice to the Profession and the Public Regarding Court Proceedings - December 22, 2020 update.
[^10]: Notice to the Profession and the Public Regarding Court Proceedings - January 12, 2021 update.
[^11]: Notice to the Profession and the Public Regarding Court Proceedings - February 25, 2021 update, March 17, 2021 update.
[^12]: April 8, 2021 Update - Notice to the Profession and Public Regarding Court Proceedings.
[^13]: I note that it is not clear to me from reading S. (N.) that a surgical mask covers as much of a witness' face as the niqab at issue in that case did. At para. 1 of S. (N.), the majority describes the niqab as covering all of the witness' face "except for her eyes". I note as well that a niqab is typically worn with a head covering, which is not the case for a surgical mask.
[^14]: City of Toronto News Release (April 12, 2021); Public Health Ontario, Surveillance Report, "COVID-19 Vaccine Uptake in Ontario: December 14, 2020 to April 3, 2021".
[^15]: The Public Health Ontario document filed, Masking for Source Control, dated November 5, 2020, states that masks protect others, not the worker wearing the mask.
[^16]: On November 11, 2020, the U.S. Centers for Disease Control changed its previous position and advised that masks can provide some protection to the wearer. The February 12, 2021 memo from the three Chief Justices, based on medical advice, states that: "Masks are worn for our self-protection and the protection of others". See also City of Toronto, "COVID-19: Reduce Virus Spread" (April 7, 2021), online: City of Toronto toront.ca/home/covid-19/covid-19-protect-yourself-others/covid-19-reduce-virus- respiratory droplets it provides source control to reduce the spread of germs into the air and on surfaces. Some masks can also protect the wearer from infection". See also Jennifer Lowe, et al., "Individual and community-based measures to mitigate the spread of COVID-19 in Canada" (April 7, 2021), online: Government of Canada canad.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/he effective for source control by preventing the infectious respiratory particles of a person who has COVID-19 from coming into contact with others. In addition, there is evidence that non-medical masks can provide some protection to the wearer from the infectious respiratory particles of others. It is recognized that there is a synergystic protective effect when both the infected and exposed individuals wear non-medical masks."
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